Dallas Court of Appeals, No. 05-13-01080-CV (June 24, 2014)
Justices Moseley (Opinion), Lang, and Brown
Richard Malouf, a dentist, sued Brett Shipp, a television reporter, for defamation based on Shipp’s statements that Malouf had filed for bankruptcy and was divesting assets, made at the end of a report regarding lawsuits accusing Malouf of Medicaid fraud. Shipp moved to dismiss Malouf’s lawsuit under the Texas Citizens Participation Act. The trial court denied Shipp’s motion, but the Court of Appeals reversed and rendered judgment dismissing Malouf’s claims.
As a threshold matter, the Court of Appeals affirmed the ruling of the County Court at Law that it had jurisdiction to adjudicate Malouf’s claim, rejecting Shipp’s argument that proceeding in the county court would deprive him of his right to a twelve-person jury. The appellate court reiterated its 2005 holding that the size of a jury is not jurisdictional.
On the merits, the Court reviewed the shifting burdens applied to motions to dismiss under the TCPA. First, Shipp met his burden to show Malouf’s lawsuit was filed in response to Shipp’s exercise of his free-speech rights on a matter of public concern. To make that determination, the Court reviewed the two-minute broadcast as a whole, not just the two statements Malouf claimed were defamatory.
Second, the Court held Malouf did not meet his burden to “establish by clear and specific evidence a prima facie case for each essential element” of his claims. Critical to this decision was the Court’s holding that falsely asserting a dentist has filed bankruptcy does not adversely affect his fitness to practice dentistry, so was not defamation per se. Malouf’s failure to present evidence of actual damages caused by the challenged statements was fatal to his claim.
In addition to reversing and rendering judgment against Malouf, the Court remanded to the trial court for a determination of damages and fees payable to Shipp under the TCPA.
